FIRM BANSILAL SUKHLAL Vs. KURBAN HUSSAIN

JUDGEMENT

(1.) THIS is a first appeal by firm Bansilal Sukhlal and others against the judgment and decree of the Civil Judge, Udaipur, by which that court decreed the suit brought by Qurban Hussain Banduqwala plaintiff for a sum of Rs. 7,311/ -.

(2.) THE case put forward by Qurban Hussain in the plaint was this. Another Qurban Hussain Bhujiawla, who is defendant No. 1 in the suit, arranged to get a consignment of 12 bales of Niwar from Seth Gopaldas Rathi of Kanpur, weighing 30 maunds, 18 seers and 4 chhataks. THE Niwar was purchased at Rs. 120/- per maund, and the consignment was sent to Udaipur. THE railway receipt was sent through the Bharat Bank. It so happened that defendant No. 1 Bhujiawala could not pay for the Niwar, but managed to get it from the railway by executing an indemnity bond and giving security of Baqar Hussain. THEn arose the question of payment of customs duty and railway freight, and Bhujiawala had not money even for this. It is said that he had dealings with the firm Banshilal Sukhlal and therefore borrowed some money for payment of customs duty and railway freight from them, and took delivery of the consignment. As a security for this loan, the 12 bales of Niwar were kept in the custody of the firm Banshilal Sukhlal and it was agreed that the firm would return the bales on payment of the amount borrowed from them. It seems, however, that Qurban Hussain Bhujiawala could not arrange to pay them anything, and therefore eventually sold this consignment to the plaintiff Banduqwala for Rs. 300/- and Banduqwala was to pay the price to Gopaldas Rathi of Kanpur and also pay the amount to the firm Banshilal Sukhlal, which was due to them. It is further said that Bhujiawala took Banduqwala to the shop of Banshilal Sukhlal and told them that Banduqwala would pay the amounts due to the firm and they should deliver the consignment to Banduqwala. This agreement of sale took place on the 9th of July, 1948, and is Ext. P-l. THE plaintiff's case further is that he went a number of times to the shop of Banshilal Sukhlal but they put him off on several occasions. Eventually they said that they had never received any bales of Niwar from Bhujiawala, and had nothing to give to Banduqwala. THE exact date of this refusal is not given; but it is said to have taken place sometime in the month after 9th of July, 1948. THE present suit was filed on the 9th of July, 1951, and the plaintiff claimed the return of the 12 bales of Niwar or in the alternative their price at Rs. 240/- per maund. This worked out to Rs. 7,311/ -.

(3.) BEFORE was come to consider the point of limitation that has been raised, we may dispose of one argument, namely that the plaintiff has not produced Bhujiawala as a witness. That is no doubt so; but considering the evidence, that! has been produced and particularly the statements of the two defendants, we are of opinion that the case for the plaintiff is proved amply even without the statement of Bhujiawala. It would have been better if Bhujiawala had been produced in the witness box; but his absence has not, in this case, in any way affected the proof of the case for the plaintiff.